By Justice Bhanwar Singh and Dr NK Bahl
The Supreme Court while rejecting the default bail application of activist Gautam Navlakha had observed embracing the international practice of putting the accused under house arrest in deserving and suitable cases as a means to decongest prisons. No doubt prisons in India are housing inmates more than double their capacity.
In India, house arrest has its roots in Section 5 of the National Security Act, 1980, wherein a person under preventive detention can be confined at any place, which obviously includes one’s own house. But there is no provision for house arrest in CrPC, 1973. House arrest means that an individual is remanded to stay home during pendency of the investigation, inquiry and trial or in order to serve a punishment in lieu of jail.
House arrest that is used as a method of pre-trial confinement will only last until the conclusion of the trial. Following it, a house arrest sentence might last depending on what crime the offender was convicted for and the amount of punishment awarded.
The types of house arrest may vary in severity according to the requirements of the court order. A house arrest may be enforced usually during hours of darkness. The most serious level of house arrest is “home incarceration”, under which an offender is restricted to his residence 24 hours a day, seven days a week, except for court-approved exemptions.
To ensure its implementation, anyone on house arrest should have an appointed parole or probation officer who will monitor and supervise his activities. The officer cannot be on duty round the clock for each and every person on house arrest. Hence, the arrestee may be compulsorily required to wear a GPS ankle bracelet at all times. The electronic sensor transmits a radio frequency signal to a base handset which is connected to a police station or a for-profit monitoring agency. If the arrestee goes too far from his home, the violation is recorded and the police notified. To discourage tampering, many ankle monitors detect attempted removal. The surveillance service may be contracted out to private companies. If the arrestee moves away from his house, the unit will send signals to the office or officer in charge immediately. The officer will either call or verify the participant’s whereabouts. The monitoring service will notify this to the arrestee’s probation office.
The arrestee is likely to take drugs and/or drinks during house arrest and enjoy his life. It should be a condition of house arrest bond and surety bonds that the arrestee will refrain from taking drugs/drinking. Certain kinds of home-monitoring devices are designed to detect alcohol consumption by testing sweat. The bracelet can detect changes in the arrestee’s blood alcohol content via skin contact. Similarly, drug traces can be detected too.
These bracelets are available in the market and are waterproof. So, the arrestee can bathe or swim while wearing the device without damaging it or interrupting its GPS tracking system. There are GPS ankle monitors with built-in microphones that can secretly listen and record conversations going on around the arrestee.
These bracelets are battery operated and so, will need charging. When the battery needs to be charged, the device vibrates until it is connected to the charger. During this time, the power LED will blink red as a signal from GPS satellites. The unit can be set to detect a bracelet within a range of 50 to 150 feet. When a bracelet comes in the range of the unit, it will send a notice to the monitoring centre which has to be staffed 24 hours a day, all year round.
Another method of ensuring house arrest compliance is through the use of automated calling services that require no human contact to check on the offender. Random calls are made to the residence of the arrestee. The arrestee’s answer is recorded and compared automatically to his voice pattern. Authorities are notified only if the call is not answered or if the recorded answer does not match his voice pattern.
It is usual that friends and relatives will come to see the person under house arrest. But friends should not be allowed. Use of the telephone should also be restricted to the parole/probation officer, family, work and those individuals approved by the parents/guardians of the arrestee and probation officer. Exceptions may be made to allow visitors in emergent circumstances.
How one can get off house arrest? Depending on the severity of the crime and criminal record of the arrestee, a competent court may allow “breaks” from house arrest. The arrestee may be able to go to work, school, doctor’s appointments, counselling sessions, community service and other court approved activities. The terms of house arrest can differ, but the programme may allow them to work. The programmes may also allow the convict to leave his residence during regular, pre-approved times in order to carry out general household duties such as shopping.
Ankle bracelets can be promoted as a humane alternative to jail in India. But who will bear the cost of the bracelet? Private companies will charge thousands of rupees a month for a surveillance device. The arrestee has to pay for the initial cost and maintenance. If the arrestee can’t pay, he will to end up behind bars. This electronic monitoring may be a highly economical alternative to the cost of imprisoning offenders. The convict/undertrial must be required to pay in cash for this monitoring as part of his sentence.
The person under house arrest should not be allowed to remove the device. What happens if the bracelet dies, is destroyed or mutilated by the accused? Obviously, the arrestee will be responsible as this amounts to violation of the conditions of house arrest bond and surety bonds. In order to have the bracelet removed legally, the arrestee needs to petition the court. The bracelet can be legally removed when the period of house arrest is over. Tampering with the electronic monitoring device should be made illegal, amounting to commission of an offence in accordance with a new legislation which has to be enacted. If the arrestee violates the conditions of house arrest, including leaving the home without an approved reason, he should be arrested immediately and sent to jail.
Home detention is an alternative to imprisonment. Its goals are both to reduce recidivism and to decrease the number of prisoners, thereby saving the budget of the State. It is a corrective to sentencing. It allows eligible offenders to retain or seek employment, maintain family relationships and responsibilities and attend rehabilitative programmes. The purposes of house arrest is to administer a reasonable punishment, protect public safety, reserve jail space for more serious offenders, reduce the potential criminogenic effects of incarceration and help rehabilitate the offender.
The arrestee should not get remission or “time off” for good conduct and behaviour under the jail manual when under home confinement. If the court has sentenced a person to one year, he has to serve that entire amount under home confinement. However, the arrestee is entitled to get the period of house arrest set off against the total sentence awarded to him under Section 428 CrPC.
In what category of offences should a house arrest programme be resorted to? The offences should not be punishable more than seven years of imprisonment. This facility should be available to first-time offenders only. In general, offenders, such as terrorists, murderers, rapists and dacoits should not be considered eligible for house arrest. Drug peddlers and habitual offenders should also not be eligible. Likewise, offenders of immoral acts deserve to be in prison rather than under house arrest. All these anti-social offenders must not be given the comfort and facilities of home. This programme would be best for juveniles and females. House arrest can be used at the undertrial stage as well as after conviction to de-congest prisons.
Cases for house arrest may be selected on the basis of old age, health conditions, antecedents of the accused, nature of the crime and ability to afford and enforce the terms of the house arrest. The accused will not come in contact with other accused persons in jail. Jurisprudentially, it will be rehabilitative too.
House arrest can be a cost-effective way of punishing criminals who pose no threat to others and thus do not need to be imprisoned at the State’s expenses. However, its feasibility will be a big question mark in India.
All the above mentioned surveillance measures must be taken care of by a suitable legislation, otherwise, the accused will commit a crime and enjoy at home, which will be counter productive to the criminal justice system.
—Justice Bhanwar Singh is a former judge of the High Court at Allahabad and Dr NK Bahl is former District & Sessions Judge, and is presently Professor of Law at JEMTEC School of Law, Greater Noida (UP)